tag:www.lgbtbib.org,2009://1 2009-07-09T17:06:45Z Movable Type 3.36 tag:www.lgbtbib.org,2009://1.313 2009-07-09T17:03:56Z 2009-07-09T17:06:45Z

Woods, Jordan Blair

bibliography The Matthew Shepard Act seeks to amend the federal hate-crime law to include sexual orientation and gender identity. Although the act passed the Congress in 2007, then-President Bush threatened to veto the Defense appropriations bill to which it was attached if it came to his desk including that section. Hopes are high that the bill will become law early in the Obama administration. Woods argues that the constitutional authority to pass such a law is to be found not in the Commerce Clause -- an increasingly sketchy basis on which to exert Congressional power -- but in the Fourteenth Amendment's Section 5 enforcement power. He reaches his result by pointing out that the effect of the hate crimes is to prevent victims "from reporting their crimes to the police, influence police officers not to categorize or investigate their crimes as bias crimes, and prevent prosecutors from prosecuting their crimes as bias crimes," the remedy for which falls to Section 5 "to ensure a right of access to the courts." tag:www.lgbtbib.org,2009://1.312 2009-07-09T16:59:09Z 2009-07-09T17:03:14Z

Wieland, Steven P.

bibliography Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. Aug. 30, 2007), which upheld the right of six same-sex couples to be issued marriage licenses, and the decision by the Iowa Supreme Court upholding that outcome (763 N.W.2d 862 (Iowa 2009)). Wieland hoped that a decision using the rational-basis test -- the lowest level of scrutiny in equal protection analysis -- would "shift the debate away from the divisive issue of marriage back to human equality -- from 'Do homosexuals deserve the traditional privilege of marriage?' to 'How should we provide equal access to government benefits and protections to all people, including homosexuals?'" The Iowa court has in the past employed a "rational-basis-with-bite test," or a "bare animosity review," and the authors believes that this would be the more appropriate path in the present instance. History has overtaken his arguments, however, as the court chose to uphold the right to same-sex marriage by relying upon an intermediate level scrutiny which requires that "a statutory classification must be substantially related to an important governmental objective." This standard the state could not satisfy. ]]> tag:www.lgbtbib.org,2009://1.311 2009-07-09T16:55:11Z 2009-07-09T16:58:36Z

Wasserman, Rhonda

bibliography Are states required by the U.S. Constitution to recognize an adoption degree in another state regardless of the parents' sexual orientation. At least one state -- Oklahoma -- and one high-profile commentator -- Lynn Wardle -- say no, that, in the latter's words, "in many situations nonrecognition of lesbigay adoption decrees would be proper and permissible." Wasserman examines four different rationales to support such a conclusion, finding all to be flawed. Wardle's antigay posture, she argues, is contrary to "both Supreme Court precedent and an overriding policy favoring permanency in parent-child relationships." tag:www.lgbtbib.org,2009://1.310 2009-07-09T16:49:45Z 2009-07-09T16:54:43Z

Wardle, Lynn D.

bibliography Coming from a law professor whose sole claim to fame rests on his vigorous and varied attacks on gays' rights, this particular article is remarkably restrained. The basic question he asks is whether U.S. ratification of the Hague Convention on Intercountry Adoption contains any hidden requirements to allow adoption by gay men and lesbians, something he would view as a regrettable outcome. His analysis suggests -- not least because at the time of the HCIA's writing (between 1988 and 1993), the social landscape concerning homosexuality was markedly different than it stands today -- the treaty contains no such stipulation, and in fact leaves much of the details about adoption to the local law of the countries involved. While this result is perhaps not as positive as gay couples would like, neither is it as negative as the author would prefer, a cause for some encouragement. tag:www.lgbtbib.org,2009://1.309 2009-07-09T16:42:57Z 2009-07-09T16:49:03Z

Symposium

bibliography The Bell Curve. He states that because "marriage's role as an institution depends upon its function of perpetuating culture and civilization through the birth and nurturing of children," and therefore "gay marriage is an oxymoron." He is at least consistent in that for similar reasons he would deny marriage to sterile heterosexuals. David Frum wonders what the big deal is, since gay couples have not rushed to get married in those jurisdictions where it has become available. Dale Carpenter provides the final formal presentation, in which he points out that the Burkean conditions for social change are being met, and that, as gay and lesbian couples "are saying 'yes' to a traditionalizing institution...the question for conservatives at the end of the day is, why can't they take 'yes' for an answer?" The transcript of the symposium Q&A is fairly unremarkable, although it did allow one antigay spokesperson to show how unnuanced prejudice can be. When rhetorically asked, "But if the question is, 'Does somebody who has doubts about gay marriage, therefore become hostile to all efforts at being fair and receptive to the more particularized problems gay face?'", Teresa Stanton Collett pipes up, "Perhaps I might." ]]> tag:www.lgbtbib.org,2009://1.308 2009-07-09T16:39:07Z 2009-07-09T16:42:24Z

Stychin, Carl F.

bibliography "Rights talk," writes this author, are a double-edged sword. Those claiming rights (in this case, for same-sex couples to adopt) are often met those opponents also claiming rights (Catholic adoption agencies seeking an exemption from a requirement to consider same-sex couples). Such conflicts show the inherently rhetorical nature of the claim to rights, which constitutes Stychin's primary point. The idea of the right, from this perspective, one upon which much of gay activism depends, from this perspective becomes less of a trump than merely one device among many, a perhaps necessary but not sufficient claim in the public marketplace since it is so easily parried by countervailing claims framed in equivalent terms. tag:www.lgbtbib.org,2009://1.307 2009-07-09T16:35:50Z 2009-07-09T16:38:34Z

Strasser, Mark

bibliography Strasser ventures onto intellectual white water in this piece due to its controversial topic. Not that the reader would realize this from the seemingly innocuous title. His argument is first that those who would dismiss same-sex marriage by invoking the slippery slope to polygamy argument err by blurring distinguishable activities. Reasonable enough. Hackles will rise in the next sections which point out that, even so, "current plural marriage bans are not narrowly tailored enough to withstand the close scrutiny that should be given to statutes that target religious practices." In other words, while gay marriage does not lead to polygamy, the dispassionate reevaluation of the grounds on which both those practices are prohibited leads to the conclusion that "the Free Exercise Clause requires an exception be recognized for some same-sex marriages and for some plural marriages involving consenting adults." His thesis should be taken seriously by anyone interested in what the law actually requires, rather than merely the legal supports for the things they prefer. tag:www.lgbtbib.org,2009://1.306 2009-07-09T16:32:59Z 2009-07-09T16:35:18Z

Squatriglia, Heather

bibliography "Given that sexual orientation and gender identity are intricately intertwined with issues of truancy, the commission of survival crimes, substance abuse, and suicide, it is not possible to treat and rehabilitate youth without providing counseling and programming that includes LGBT identities." Due to the causal nexus pointed out by this author -- LGBT youth require social services often because they are LGBT youth -- this dimension of their personhood cannot be ignored. She recommends appropriate placement options, sensitization of social workers to the underlying issues, including to the fact that they should not presume heterosexuality, and positive social outlets. tag:www.lgbtbib.org,2009://1.305 2009-07-09T16:29:31Z 2009-07-09T16:32:22Z

Seidman, Louis Michael

bibliography Writing from the perspective of the journal issue's theme of "Law and Morality," Seidman inquires into the over-the-top rhetoric of opponents of gays' rights, such as Justice Scalia, who think that "the case for gay rights is outside the range of reasonable constitutional argument." After demonstrating that a moral argument can be fielded for gay marriage, he returns to the question of why Scalia insists that such defenses are not simply wrong, but illegitimate. Generously taking him at his word that he is not motivated wholly out of pure animus, Seidman interestingly suggests that the dilemma lies in the problematic relationship between law and morality. If "it is true that constitutional questions are inextricably tied to moral questions [as liberal constitutionalism presumes], and if it is also true that moral questions cannot be resolved by reasoned argument [as the debate over gay marriage suggests], then it follows that constitutional questions cannot be so resolved either. But then it would be true that our polity is not founded on principles that all of our citizens are bound to respect and that the ambitions of liberal constitutionalism would have failed." This outcome, he notes, would be "a very big deal" for one such as Scalia, and at least offers an alternative explanation for his lashing out "at people who, he perceives, are attacking the very foundations of the Republic, not to mention his self-conception of how he performs his job." tag:www.lgbtbib.org,2009://1.304 2009-07-09T16:25:19Z 2009-07-09T16:28:57Z

Savastano, Gennaro

bibliography Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) serves springboard for this commentary, wherein the New York Court of Appeals denied that the state constitution compelled recognition of same-sex marriages. Hernandez, which dealt with the question of issuing licenses of New York citizens, influenced later cases ruling on the question of recognition of marriages in foreign jurisdictions, such as Funderburke v. New York State Department of Civil Service, 822 N.Y.S.2d 393 (Nassau County Sup. Ct. 2006), Godfrey v. Spano, 836 N.Y.S.2d 813 (Westchester County Sup. Ct. 2007), and Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep't Feb. 1, 2008), which disagreed over whether Hernandez had changed the law as concerned comity. This outcome is allowed, he says, because "the spirit of New York law safeguards citizens with respect to matters of sexual orientation, rendering the public policy arguments [for exemptions from comity obligations] untenable." ]]> tag:www.lgbtbib.org,2009://1.303 2009-07-09T16:21:04Z 2009-07-09T16:24:53Z

Ross, Spencer B.

bibliography Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) just such a requirement in the Full Faith and Credit Clause. ]]> tag:www.lgbtbib.org,2009://1.302 2009-07-09T16:18:01Z 2009-07-09T16:20:37Z

Rosich-Schwartz, Damaris

bibliography Tenancy by the entirety -- recognized by about half the states -- provides for the "non-divisibility of interests in the property, unless agreed upon by both spouses, or after a decree of divorce, or the death of one of the spouses.... Neither an individual creditor of one of the spouses nor a unilateral transaction can sever the tenancy." This arrangement can be contrasted with other types such as "joint tenancy" -- which allows each tenant "the right to unilaterally sever the tenancy without the other's knowledge or consent" -- and "tenancy in common," which may be severed at any time by either cotenant and does not provide any survivorship rights [and is thus] useless for couples seeking to protect their property from outside creditors and individual conveyances, while also avoiding the probate process." While many writers are urging the elimination of tenancy by the entirety, the author argues that this form of shared ownership serves vital interests not only for married couples, but can be meaningfully expanded to include property protections for common law spouses, same-sex couples, and other "quasi-marital" relationships. tag:www.lgbtbib.org,2009://1.301 2009-07-09T16:14:40Z 2009-07-09T16:17:35Z

Rellis, Jennifer

bibliography Intersexed persons are born with external genitalia that are fully neither male nor female, creating problems for a system of "allocating rights on the basis of sex," especially in the areas of employment and marriage. Rellis contrasts the treatment of those born intersexed in the United States -- usually triggering emergency "corrective surgery aimed at 'normalizing' external genitalia to fit societal expecations" -- with those in the India, the hijras, a group she describes as "beginning to gain legal recognition in India when they self-identify as a third gender." The "E" mentioned in the title is one example, an official third-gender designation allowed (referring to "eunuch") for documents such as passports. The author urges reforms that ensure "a constitutional right to self-identify outside the gender binary based on the fundamental right to privacy and bodily integrity derived from the Fourteenth Amendment's Due Process Clause," and identifies some statutory efforts such as the International Bill of Gender Rights adopted by the International Conference on Transgender Law and Employment Policy as important first steps. tag:www.lgbtbib.org,2009://1.300 2009-07-09T16:11:52Z 2009-07-09T16:14:18Z

Pugh, Catherine

bibliography Pugh serves up an engrossing argument for improving state prosecution of hate crimes. The touchstone account reappearing through the text is the story of Megan Williams, who, for more than a week in September 2007, was beaten and sexually abused by six men and women. Although at least two abusers admitted that the fact that Williams was black as an precipitating cause of the attack, only one defendant was charged with a hate crime. While the prosecutor may wish to avoid the added complications of proving a hate crime motive, and be satisfied that the defendants earn stiff penalties on other charges, Pugh believes this deprives the victims and society in general of valuable closure on the hate motivations of the crime. Among her suggested improvements in hate crime legislation is the removal of the "double-intent" requirement that limits concurrent jurisdiction over hate crimes (i.e., "Under current law, to establish a 245(b) violation, the government must prove beyond a reasonable doubt (1) the intent to commit a crime of violence that was motivated by racial, ethnic, or religious hatred, and (2) the intent to interfere with a victim's enjoyment of at least one enumerated federally protected activity." It was the lack of the second element that prevented federal involvement in the Williams case.). She also favors including Victim-Offender Mediation procedures in any new legislation, which in some cases can circumvent the problem of proof in a courtroom, and allow catharsis through confrontation between the victim and the offender, which benefits both parties as well as society. tag:www.lgbtbib.org,2009://1.299 2009-07-09T15:45:39Z 2009-07-09T16:03:48Z

Poirier, Marc R.

bibliography In the well-trod path of arguments over same-sex marriage, it is rare to come across a piece that strikes the reader as presenting something new. Here, Poirier refigures the traditionalist arguments against gay marriage in a way that not only makes them more intelligible, and may mark a path toward new and more effective counterstrategies. His thesis is that these claims are of the same sort "as is often made by Native Americans, indigenous, and other culturally-subordinated groups to certain cultural resources -- a right to exclude others in order to protect sacred objects, places, and rituals, so as to preserve and perpetuate group identity over time.... Access to marriage by same-sex couples is understood by traditionalists to threaten the desecration of this ritual, status, and identity" in much the same way that Native Americans believe allowing tourists into areas sacred to them reduce them to the mundane, ordinary, and profane. Poirier does not believe that such traditionalist claims should be determinative -- any more, one might observe, than Native American claims have proven successful in most instances in which they have been asserted -- but the insight offered by the comparison, he hopes, will open up "a different line of potential progressive responses to the traditionalist claim."